Adoption / Surrogacy Leave

An employee who adopts a child (or has a child through a surrogacy arrangement) and who fulfils certain conditions, including giving the required notice to his/her employer and having worked continuously for the employer for at least 26 weeks, has the statutory right to take up to a year off work on adoption/surrogacy leave.

Statutory Adoption Leave is 52 weeks. During this period you are entitled to pay rises, accrued holiday and to return to work.

Only 1 person in a couple can take Adoption Leave. The other partner could get Paternity Leave.

Statutory Adoption Leave

For the first 26 weeks of leave, called “ordinary adoption leave” (“OAL”), the adopter will normally be entitled to Statutory Adoption Pay (“SAP”). Only employees are entitled to OAL who give correct notice and if required, proof of the adoption or surrogacy to the employer.

During the second period of 26 weeks, called “additional adoption leave”(“AAL”), the employee will not be entitled to SAP (so the second six months will be unpaid unless the employee has some special contractual arrangement to the contrary with his/her employer).

Start Date

The adopter can start adoption leave on the day of the child’s placement or from a fixed date, which can be up to 14 days before the expected date of placement or the day the child’s born or the day after (if you have used a surrogate to have a child).

If the placement ends during the leave period the adopter can continue on leave for up to a further eight weeks. Only one period of leave is available, irrespective of whether more than one child is placed for adoption as part of the same arrangement.

An employee can choose to take either adoption leave or paternity leave (one or two weeks) when a child is placed with him/her for adoption. If a couple adopts jointly, one of them can take adoption leave and the other can take paternity leave.

Pay

Statutory Adoption Pay (“SAP”) is paid for up to 39 weeks. The weekly amount is:

• 90% of your average weekly pay for the 1st 6 weeks;
• £139.59 or 90% of your average weekly pay (whichever is lower) for the next 33 weeks.

Normal tax and NI deductions apply in the normal way. Your employer may pay more than this under a Company Adoption Pay Scheme but cannot pay less than this. Entitlement starts when your adoption leave commences.

To get SAP (for adoption), the employee must:

• have worked for the employer continuously for at least 26 weeks by the week you were matched with a child
• earn an average of at least £112 per week before tax;
• give the correct notice
• give proof of adoption or surrogacy

To get SAP (for surrogacy), the employee must:

• have worked for the employer continuously for at least 26 weeks by the 15th week before the baby is due
• intend to apply for a parental order
• expected the order to be granted (no criminal convictions etc)

Exceptions:

You do not get SAL or SAP if you:

• arrange a private adoption
• become a special guardian
• adopt a stepchild
• adopt a family member

Notification requirements

You must provide your employer with proof of adoption to qualify for SAP to include your name/address; the agency name/address; the match date and the date of placement.

SAL

Within 7 days of being matched with a child you must tell your employer:

• how much leave you require;
• your intended leave start date;
• the placement date.

Your employer has 28 days to confirm your dates.

SAP

You must give your employer 28 days notice of the fact you want to cease work to adopt and when you want your pay to start.

Detriment and Unfair Dismissal Rights

You are protected if you suffer a detriment including dismissal because you:

• took or sought to take OAL or AAL
• the employer believed you were likely to take OAL or AAL

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